Boston Housing Authority

Departments > Operations > Manager's Manual > 13 - Procedure for Abandonment of Unit

 
This procedure describes the legal concept of abandonment and provides forms to be used when a Manager makes the determination that a Resident has abandoned his/her apartment. Often a Manager discovers that a Resident has not been residing in the leased apartment, the rent is substantially in arrears, and yet, the Resident has not notified the BHA that he/she is vacating the unit. Occasionally the Resident has left personal property in the apartment. It is not always easy to discover whether the Resident intends to return. Each case must be judged individually before a reasonable determination can be made. Another common managerial dilemma involves the question of what to do with personal property of a deceased Resident or of a Resident who vacates leaving certain items behind. This procedure is intended to aid a Manager in making an accurate abandonment determination and in acting appropriately with regard to personal property left in a unit by a deceased tenant or a tenant who abandons the unit. 

I.    Definition of Abandonment

A Resident abandons his/her unit when he/she leaves the premises without any intention to return and he/she defaults in the payment of rent. When abandonment occurs, the Resident voluntarily surrenders control of the unit to the BHA. The BHA accepts this surrender by re-entering the unit and preparing it for a new Resident. When this surrender and acceptance occurs, the tenancy automatically terminates.
 
The most difficult part of deciding whether or not an apartment is abandoned is determining what the Resident's intentions are. A Manager may believe that a Resident is gone for good and may lease the apartment to someone else, only to have the Resident return demanding his/her apartment back. If the Manager was unreasonable in the determination of abandonment, the Resident may claim that he/she was wrongfully evicted. Therefore, a Manager must proceed with caution. 

II.   Making the Determination of Abandonment

In deciding whether an apartment has been abandoned, the Manager should consider three factors: 
1. rent
2. absence
3. property left behind

1) Rent

A Resident who abandons his/her apartment does not pay rent. As long as his/her rent is paid, a Resident cannot be said to have abandoned his/her apartment. However, the fact that a Resident's account is in arrears is not conclusive evidence of abandonment. The Manager should review the Resident's rent paying history. If the Resident has never been behind in his/her rent, nonpayment could be an important factor in the Manager's decision. The amount of the arrearage may also indicate that the Resident has abandoned the unit. If there is a substantial amount owed, the Resident may have abandoned the apartment to avoid eviction for nonpayment. 

2) Absence

a) determination of date of absence:  The Manager should interview neighbors and BHA employees to find out whether the Resident told anyone that he/she was moving or going away for a period of time. The person listed on the Tenant Status Review client worksheet form ("TSR") by the Resident as the person to notify in case of emergency should be contacted. If no one appears to know where the Resident has gone or whether he/she will return, abandonment is more likely.
 
The Manager should find out when the Resident was last seen in the development or when activity last occurred in the apartment. This date should be used to estimate the length of the Resident's absence from the premises. 

b) length of absence:  The Manager should determine the length of time that the Resident has been away from the premises. In order to signify abandonment, the Resident must have been away from the apartment for a consecutive period of time. A Resident who is on the premises sporadically has not abandoned the unit. If the length of the Resident's absence corresponds to the time period during which the Resident has not paid rent, there is a strong likelihood of abandonment. 

3) Property Left Behind

Often the best clue to abandonment is the lack of personal property left behind by the Resident. When a Resident removes all of his/her personal property from the unit, it usually can be concluded that the Resident has abandoned the apartment.
 
However, in some cases the Resident will remove most, but not all, of his/her personal belongings. When property remains in the apartment, the Manager must ascertain the amount of property and estimate its value. If a Resident leaves a number of items of little or no value, it may be reasonable to determine that the Resident has abandoned these items along with the apartment. If articles of substantial value remain on the premises, this is an indication that the Resident intends to return. Sentimental value of items should also be considered. The Manager should keep in mind what this Resident might consider valuable in terms of his/her income. 

III.  Steps of Abandonment Procedure

Once a Manager becomes aware that a Resident has not occupied his/her apartment for a period of time, the possibility of abandonment should be considered. When making the determination that an apartment has been abandoned, the Manager should fill out an Abandonment Determination Checklist. (Form AB-01.) This form should be completed and placed in the Resident's file. If the Manager's decision is challenged later, the checklist will be an invaluable aid to memory.
 
If the Manager determines that the apartment has been abandoned, the following steps should be taken.
 
1.    If the apartment is not adequately secured, the Manager should secure the apartment.
 
2.    Notice must be sent to the Resident's address at the development and any other known mailing address. Use Form AB-02. This form notifies the Resident that he/she must contact the Manager by a certain date. The date that is chosen should be at least fifteen days from the date the letter is sent.
 
3.    Notice should also be sent to the person that the Resident designated on the TSR client worksheet as the person to contact in an emergency. Use Form AB-03. This form notifies the person that the Resident must contact the Manager by a certain date. The date that is chosen must be at least 15 days from the date the letter is sent. Form AB-03 should be sent at the same time as Form AB-02 and use the same notification.
 
4.    If the Resident responds, ascertain his/her intentions. If the Resident intends to keep his/her apartment, an agreement should be reached regarding the rent arrearage. The Resident should be warned that an unoccupied apartment attracts thieves and vandals. The apartment can no longer be considered abandoned.
 
5.    If the contact person responds, find out what he knows regarding the Resident's whereabouts and attempt to get a forwarding address. If the person can explain the Resident's absence and expresses an intent on the part of the Resident to return, the apartment should not be deemed abandoned. The Manager should make a note to the file memorializing the conversation with the emergency contact. If the contact person gives the Manager a forwarding address, the Manager should send a new Form AB-02 to that address with a new notification date at least 15 days from the date the letter is sent.
 
6.    If the Manager receives no response by the designated date, the tenancy should be considered terminated by abandonment. The Manager should make a note to the Resident's file indicating that no response was received by the designated date and should prepare the unit for a new Resident.
 
If the Manager has determined that the apartment has been abandoned and there is personal property in the apartment, the Manger should also:
 
1.    Take photographs of all items left in the apartment while they are still in the same place as left by the Resident. All photographs should be stored together in the Resident's file in an envelope, together with a note from the Manager indicating the name of the former Resident, the number of the apartment, who took the photographs, and what date the photographs were taken.
 
2.    Hold the items in the secured apartment until the 15 day notice period has passed.
     
3.    If the Manager receives a response from the person named as emergency contact by the Resident on the TSR client worksheet, that person should be allowed to remove the property on behalf of the Resident. (Other than the emergency contact, only a person who identifies himself as the Resident's legal representative -- executor, administrator, custodian, guardian, attorney-in-fact -- should be allowed to take the property. In any case where a person claiming to be a legal representative of a Resident requests to enter the apartment, whether to remove personal property or otherwise, the Manager should contact the Regional Counsel concerning the accuracy and authority of the cumentation concerning the person's status as legal representative.) The person removing the property should complete and sign a receipt. Use Form AB-04.
     
4.    If the Manager receives no response by the designated date:
     
a)  Property of little or no value may be disposed of. Any property disposed of should be inventoried by the Manager. The inventory should be dated and signed by the Manager and placed in the Resident's file and should indicate the name of the former Resident, the apartment number, who took the inventory, and how the described items were disposed of.
     
b)  Property of substantial or sentimental value, e.g., cash, jewelry, personal photographs, etc., should not be immediately disposed of. This is some indication that the Resident may not have intended to abandon the apartment.  Contact the Regional Counsel for further advice. If the apartment is determined to be abandoned, even with valuable items left behind, those items should be inventoried and securely stored. The inventory should be dated and signed by the Manager and placed in the Resident's file and should indicate the name of the former Resident, the apartment number, who took the inventory, and where the described items are being stored. 

IV.   Death of a Resident

When a Resident who lives alone dies, often problems arise which are similar to those involving abandonment. When a Resident dies, the tenancy automatically terminates. Many times the apartment is filled with the deceased's personal property. A manager does not have the duty to ascertain who is the lawful heir of the property. All the Manager must do is to act with reasonable care in regard to the property. With this responsibility in mind, the Manager should:
 
1.    Secure the apartment.
 
2.    Contact the person listed on the TSR client worksheet as the person to notify in case of emergency.
 
a)  If the person responds, turn the property over to him/her after having him/her complete and sign a receipt. Use Form AB-04.   
 
b)  If the person does not respond, question the deceased Resident's neighbors and friends to ascertain the whereabouts of the deceased Resident's family, if any. If they can be located, indicate to them that they must secure court documentation regarding legal status as executor or administrator in order to remove the deceased's belongings. If they fail to do so, and no one else appears to claim the property in a reasonable time ordinarily 30 days should be sufficient), then the property may be turned over to a family member (or members) who provides an affidavit stating that he/she is next-of-kin to the deceased, together with documentation of kinship, and that he/she believes the deceased to have died intestate. If a legal representative of the deceased, such as executor or administrator, or a family member(s) with affidavit stating that he/she is next-of kin, claims the deceased's property in accordance with this provision, the Manager should turn the property over to him/her after having him/her complete and sign a receipt. Use Form AB-04. If the Manager has any question regarding the validity of documentation of representative capacity, the Manager should contact the Regional Counsel.
 
c)  If the Manager is unable to locate any relative or friend who will take custody in a reasonable time (ordinarily 30 days should be sufficient)of the property, the Manager should dispose of the deceased Resident's property of little or no value and remove the deceased Resident's valuable items and store them securely. The Manager should contact the Regional Counsel for further advice.